Sant Ram vs Janki Parshad
2000 Latest Caselaw 235 Del

ORDER

Madan B. Lokur, J.

1. The Appellant is a tenant in the suit premises being one room on the ground floor in House No. 685, Gali No. 3, Punjabi Basti, Military Road, Anand Parbat, Delhi.

2. Prior to the institution of the present proceedings, the Appellant had defaulted in payment of rent to the Respondent but since he complied with the interim orders passed under Section 15(1) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act), he was given the benefit granted by Section 14(2) of the Act, by an order dated 19th November, 1981.

3. As per the version of the Respondent/landlord, it is alleged that the Appellant did not thereafter deposit rent for the period from 1st November, 1981 upto 31st March, 1982. The Respondent sent a notice of demand dated 12th April, 1982 stating therein that the Appellant had defaulted in payment of rent for three consecutive months and was, therefore, called upon to make the payment mentioned in the notice of demand within a period of two months. The Appellant did not respond to this notice. In terms of the proviso to Section 14(2) of the Act, the Appellant was not entitled to the benefit of Section 14(2) of the Act for the second time and so was liable to be evicted under the provisions of Clause (a) of the proviso to Section 14(1) of the Act.

4. Accordingly, the Respondent filed an eviction petition under Clause

(a) of the proviso to Section 14(1) of the Act. This provision, as well as Section 14(2) of the Act, read as follows:

"14. Protection of tenant against eviction-

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application make to him in the prescribed manner, made an order for the recovery of ossession of the premises on one or more of the following grounds only, namely:-

(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of ent has been served on him by the landlord in the manner provided in sec. 106 of Transfer of Property Act, 1882 (4 of 1882):

(b) to (1) xxx xxx xxx

(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposit as re quired by section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent f those premises for three consecutive months."

5. In response to the eviction petition, the Appellant stated that in terms of the order dated 19th November, 1981 passed in the earlier eviction petition, the Appellant had deposited the arrears of rent upto 31st December, 1981 vide a challan Ex. R-1, dated 16th December, 1981. He had also deposited the rent for the months of January and February, 1982 vide a challan Ex. R-2, dated 5th/25th February, 1982. Accordingly, the Appellant contended that he was not in default of arrears of rent of three consecutive months.

6. Learned counsel for the parties were heard on 11th and 21st February, 2000 when judgment was reserved.

7. Learned counsel for the Appellant relied upon a decision of the Supreme Court in the case of Smt. Prakash Mehra Vs. K.L. Malhotra, wherein the Supreme Court had held in paragraph 7 of the Report that the arrears of rent envisaged by Clause (a) of the proviso to Section 14(1) of the Act are the arrears demanded by the notice for payment of arrears of rent.

8. Consequently, in view of the law laid down by the Supreme Court there have to be three consecutive defaults on the part of the Appellant for the period prior to the notice of demand. In order words, insofar as the present case is concerned, there have to be three consecutive defaults in payment of rent between the period 1st November, 1981 and 31st March, 1982.

9. As is evident from the contents of the challan Ex. R-1, the Appellant had deposited rent upto 31st December, 1981 in accordance with the order dated 19th November, 1981 passed in the earlier eviction petition being E.P. No. 120/1980.

10. With regard to the deposit of rent for the months of January and February, 1982 as evidenced by the challan Ex.R-2, learned counsel for the Respondent contended that there was no occasion for the Appellant to deposit the rent before the learned Additional Rent Controller in E.P.No. 120/1980 which had already been decided. The rent should have been paid to the Respondent or at least tendered to him but the same was not done. Consequently, the Respondent had absolutely no knowledge about the deposit of rent for the months of January and February, 1982.

11. The admitted position is that the question of deposit of rent is dealt with in Chapter IV of the Act. Section 27(1), (2) and (3) of the Act (which are presently relevant) read as follows:

"27. Deposit of rent by the tenant.

(1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner.

Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.

(2) The deposit shall be accompanied by an application by the enant containing the following particulars, namely:

(a) the premises for which the rent is deposited with a description sufficient for identifying the premises;

(b) the period for which the rent is deposited;

(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent:

(d) the reasons and circumstances for which the application for depositing the rent is made;

(e) such other particulars as may be prescribed.

(3) On such deposit of the rent being made, the Controller shall send in the prescribed manner a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the data of the deposit."

12. The Appellant had deposited the rent as postulated by Section 27 of the Act. It is in pursuance of the proceedings under Section 27 of the Act that the Appellant was allowed to deposit rent for the months of January and February, 1982 vide a challan Ex. R-2 dated 5th February, 1982, the actual deposit having been made on 25th February, 1982. I am afraid it is not possible for me to go behind the proceedings under Section 27 of the Act as these are not before me. I will assume, therefore, that the proceedings under Section 27 of the Act were validly instituted and lawfully conducted.

13. The learned Additional Rent Controller came to the conclusion that the Appellant had proved the payment of rent upto February, 1982 but in view of certain decision, he came to the conclusion that for the purposes of calculating the default in payment of rent for three consecutive months, the date of issue of the notice was not relevant. As mentioned above, this question is no longer res integra in view of the judgment of the Supreme Court is Smt. Prakash Mehra.

14. The learned Rent Control Tribunal also proceeded on a similar basis in paragraph 13 of the impugned order.

15. With regard to the deposits made for the months of January and February, 1982, the learned Rent Control Tribunal was of the view that these deposits had been made after the decision in E.P. No. 120/1980 and as such, the Appellant had committed three consecutive defaults in payment of rent for the months of January, February and March, 1982.

16. As I have already held above, the proceedings under Section 27 of the Act are not under scrutiny or challenge in the present proceedings. The learned Rent Control Tribunal should not have gone behind the orders passed under Section 27 of the Act. The deposits made by the Appellant for the months of January and February, 1982, having been validly made under the authority of the learned Additional Rent Controller, they could not have been ignored by the learned Rent Control Tribunal, for whatever it was worth.

17. Moreover, there is nothing to show that the learned Additional Rent Controller did not follow the requirement of Section 27(3) of the Act, namely, the giving of notice to the Respondent. Under these circumstances, it has to be assumed that the Respondent was aware of the deposits made by the Appellant.

18. Consequently, I am of the view that the Courts below erred in not correctly appreciating the legal position. At the time when the notice of demand was sent by the Respondent to the Appellant on 12th April, 1982, the Appellant was, at best, in default of payment of rent for the month of March, 1982 only. As such, the eviction petition filed under Clause (a) of the proviso to Section 14 of the Act was not aintainable and ought to have been dismissed since the Appellant was not in default of payment of rent for three consecutive months.

19. It must be stated, in all fairness to learned counsel for the Respondent, that she did cite a few cases in support of her case but these were not apposite to the facts of this case. The decision of the Division Bench of this Court in Pruthi Brothers & Ors. Vs. Mangla Wati, 1971 RLR 1 relied upon by her is contrary to the law laid down by the Supreme Court and can be of no assistance to learned counsel for the Respondent.

20. Under the circumstances, the appeal is allowed. There will, however, be no order as to costs.

21. The record of the lower Court be sent back.